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188 significant investor visa

The subclass 188 visa sits within Australia’s business innovation and investment program (BIIP).

The visa has four primary streams. One of these streams is the significant investor stream (or, as it is generally known, the significant investor visa (SIV)).

Once an individual has held a significant investor visa for four years, the individual may be eligible to apply for a subclass 888 visa, which allows the holder to live, work and study in Australia permanently.

Attractive features of the SIV

Attractive features of the SIV include:

no upper age limit;

no points test;

no English language requirement;

no skill requirement; and

degree of flexibility as to residency in Australia.

While attractive, the SIV would not be suitable for everyone.

Application criteria

An application for a SIV will be assessed against a number of criteria – some of the criteria are applicable to all applications for a subclass 188 visa, and some of the criteria apply only to the SIV stream.

Complying significant investment

Unique to the SIV is the complying significant investment criterion. The SIV applicant must invest a minimum of AUD 5,000,000 as follows:

There are a number of requirements applicable to each of the three investment sectors. For example, to qualify as a complying fund for the sector 2 and sector 3 investments, cash can comprise a maximum of 20% of the fund’s net assets, and, subject to a limited exception, derivatives can only be used for the purposes of risk management and where the investment in the derivative(s) is not a speculative one.

At the same time, a number of rules apply with respect to investments. For example, as the law presently stands, where a sector 1 investment is realised during the term of the visa, “the amount realised from the investment must be invested in one or more of”:

sector 1 investments;

sector 2 investments;

sector 3 investments.

(Migration (IMMI 15/100: Complying Investments) Instrument 2015)

The investment upon which the application will rely must be made either at the time the application is made or after that time. The investment does not need to be made personally, but restrictions apply as to how the investor must make the investment. It is not, for example, possible for the investment to be made through a company in which shareholders include persons other than the investor and the investor’s spouse or de-facto partner.

Other

Additional application criteria include, but are not limited to, the following:

the funds used for the investment must have been legally acquired and must be unencumbered;

the applicant and the applicant’s spouse or de-facto partner (if any) must not have been involved in business or investment activities unacceptable to the Australian Government;

if nominated by a State or Territory government agency, the applicant and/or the applicant’s spouse or de-facto partner must have a “genuine intention” to reside in the State or Territory of the nominator agency; and

public interest criteria.

How to apply

A SIV application is, essentially, a three stage process. The first stage, pre-application, comprises:

lodging an Expression of Interest (EoI) through SkillSelect;

being nominated;

receiving an invitation to apply.

The second stage is the application, which must be lodged within 60 days after the invitation is made. The third stage is the period between application and decision. During this stage certain obligations must be met as to the complying significant investment.

It is vital that the EoI is accurate, and that any changes to facts notified in the EoI between the time it is lodged and the time of decision are notified in a timely manner to the Department of Immigration and Border Protection. It is prudent for the applicant to compile the evidences which will support the application prior to lodging the EoI.

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